Retired Players Win Major Court Battle with the NFL

Most retired NFL players have numerous stories of former teammates who are facing dire circumstances more daunting than anything they experienced on the playing field. The Settlement of the ongoing publicity rights class action Dryer, et al. v. National Football League, which alleged that the NFL improperly used retired NFL players’ identities in NFL Films, is a positive step towards taking care of the greater good of retired NFL players.

On March 18, 2013, the federal court overseeing the Dryer v. NFL case preliminarily approved the historic $50 million settlement between retired NFL players and the League. The Settlement is composed of two major parts, both designed to assist those who most need assistance while allowing former players true access to the value of their rights of publicity.

The first major part of the Settlement is the creation of a Greater Good Fund, which will be initially funded by $42 million in NFL payments. The Fund will be administered by a Court-approved board of retired players. The Board will disburse the funds to provide benefits to former players such as medical insurance, housing, career transition, and other forms of assistance. The proposed initial Board will be comprised of retired NFL players Jim Brown, Ron Mix, Irv Cross, Dave Robinson, Jack Youngblood, Billy Joe Dupree and Darrell Thompson.

The second major part of the Settlement is the creation of a Licensing Agency that, for the first time, will be able to market the identity rights of retired NFL players in the global marketplace. The Agency will be devoted solely to the interests of retired players and will operate independently from the NFL and NFL Players Association. As part of the Settlement, however, the NFL will provide financial and promotional support to the Agency in the form of startup funding, access to commercial sponsors, advertising, promotional space at the Super Bowl, and other efforts. The Licensing Agency will create a one-stop-shop for companies who are interested in contracting for the licensing rights of retired NFL players for use in advertising, consumer products, and other programs. Revenues from the Agency will be split between the players and the Greater Good Fund as an ongoing funding source.

The Settlement has received strong support from many retired NFL players, including Hall of Famer Jim Brown. According to Brown, “The conditions of the settlement offer us a future. We have something on the table that is realistic and would include all players. And we have a board. That’s a fantastic thing, in that we can identify the needs of our players and our brothers, and that’s something I think that we know better than anybody.

“Football is a team sport. We’re not going to overlook anyone. If I had a choice between making $100 million for myself, or have players who worked just as hard as me and have them get compensation for that, there is no choice for me. I would rather make that sacrifice. The greater good is what I support and I put my money where my mouth is because I’ve made that commitment. As a high-profile individual who’s had many opportunities to do other things, I’m willing to stand in front of anyone and say this is the best way to go.”

Irv Cross played nine seasons for the Philadelphia Eagles and L.A Rams, followed by a decades-long career in sports broadcasting. He is well aware of the plight of many of his former teammates.

“We have guys who are living in pretty tough conditions,” Cross said. “I knew a guy who lived in his hometown, and things weren’t going well for him. He had problems. He became a recluse and almost became embarrassed to go outside. He was very depressed and almost did some harm to himself. It’s guys like that where we need to be available to him to talk to him. And I knew a guy … he was looking for direction and guidance, and he was a young guy and he passed away.

“What I’ve run into with retired football players is a sense of isolation. So now there’s a fraternity here where you can reach out to retired football players. Football players, for the most part, have a very strong sense of loyalty. This sense of giving back and working with retired players is a natural thing to do. One of your teammates is hurt, you want to rally around them and help them as best you can. That’s what this is all about. It’s not about us.”

The former players filed their publicity rights suit in federal court in Minneapolis in 2009. After several years of hard-fought litigation, Chief Magistrate Judge Arthur Boylan actively supervised a settlement process that led to the present Agreement. A final approval hearing for the Settlement is set for September 19, 2013. Retired NFL players will have until August 30 to accept the settlement, object to it, or opt out.

As retired players prepare to move forward with this historic Settlement, a small group of players involved in the initial lawsuit have voiced objections. These players primarily object to the Settlement’s lack of individual cash payments in favor or the Greater Good Fund, while also claiming the overall settlement value is too low. The federal court overseeing the case and the approval process of the Settlement disagreed with these objectors and rejected their arguments in preliminarily approving the agreement.

The Hon. Paul A. Magnuson held the settlement met all of the criteria for reasonableness and fairness for preliminary approval, and ordered Notice to be sent to the Class of retired players. According to the Court:

It bears repeating: the individuals who originally brought this lawsuit and who now oppose the settlement rode into Court on the banner of saving their downtrodden brethren, those who had played in the NFL yet today were penniless and, often, suffering from injuries or illnesses directly related to their playing days. It is the height of disingenuousness for these same Plaintiffs to now complain, like children denied dessert, that the settlement does not benefit enough the individuals who brought the lawsuit. The benefits of this settlement to the class are plain: it will assist those who most need assistance, and will resolve the very problem that this lawsuit seeks to address by allowing former players true access to the value of their rights of publicity.

Importantly, the Court previously ruled that the lawsuit would only include damages dating from August 2003 to the present and would not cover the NFL’s decades-long use of retired players in NFL Films and elsewhere going back to the early 1960’s.

The Settlement is strongly supported by retired NFL Hall of Famer and attorney Ron Mix. According to Mix, “The settlement is the only guaranteed method of having a financially independent organization governed by retired players that will benefit those who need assistance the most. The alternative is continued litigation where the most likely result is disaster based on wishful thinking.

“The trial judge, in giving preliminary approval of the settlement, stated that granting class certification was ‘highly doubtful.’ A look at history is educational – retired baseball players brought a class action against Major League Baseball that included claims of wrongful use of their images. The court denied class certification; therefore, four of the players brought individual actions, and lost.”

For the past 10 years, Mix has focused his law practice on helping NFL retired players obtain workers’ compensation benefits from their former teams. He has represented hundreds of former players and believes the present Settlement offers the best opportunity to provide what many retired NFL players need most, including the opportunity to generate revenue independently from the NFL.

“This structure of this settlement goes far beyond the original goal because retired players will, for the first time in history, have a financially independent, legally recognized organization devoted solely to developing products and events for their benefit,” Mix said. “The most important aspect of the Greater Good Fund is it will be controlled by retired players. One of the most attractive parts of the settlement structure is the creation of the licensing agency because a portion of its earnings will be designated to the Greater Good Fund; thus, it has the potential to provide monies to the fund in perpetuity.”

According to Irv Cross, “[It is a] sense of independence, which we’ve never had in pro football. This is a unique situation where a group of retired players can get together and we can create a revenue stream through a business that can help fund our greater need and fund other things. It would be nice to be able to take care of basic issues. I do know that careers end suddenly. And you can’t avoid that. It’s all part of the game. But if we know that, let’s prepare ourselves to soften that blow.

“The success rainbow goes a long way. Some people are on the high end of the income scale, some were on the middle scale, and others were on the low scale. And you’re talking about different eras. The salary scale now is very generous, but when you played in the 1960s, we played for peanuts. We played preseason games for $50 a game. We had to bring our own shoes. You made $8,000-9,000-$10,000 a year for a 12-game schedule.”

Jim Brown also sees the newly created Licensing Agency as a potential economic boon for retired players as it will allow retired players as a group to enter the multibillion dollar global market for NFL football for the first time.

“When we share in royalties from licensing the images with our players, it means we can develop a fund in future years that would be major,” Brown said. “It’s very important to think of the family of players, and there’s a short lifespan for these football players, and these family members are sometimes left with very little. This is going to bring us not only resources, but education. The most important element is that our board can make a determination on how to help and who to help.”

Added Cross, “Everybody knows about the superstars but Jim Brown was rare. There must be thousands of guys that have no face, no name, no personality, but those guys were part of the team. It’s hard to leverage your reputation when you don’t have that kind of exposure. I’m really excited about the licensing plan.”

Retired NFL players seeking a copy of the settlement order and more information can visit www.profootballretiredplayersassociation.com. Players are also encouraged to contact counsel for the Plaintiff retired players Zimmerman Reed, PLLP at 800.755.0098 or Hausfeld LLP at 202.540.7200.